Barrett v. Shannon

| Mont. | Apr 26, 1897

Pemberton, C. J.

Section 3782, Political Code, is as follows: “No reduction must be made in the valuation of property unless the party affected thereby, or his agent, makes and files with the board (board of equalization) a written application therefor, verified by his oath, showing the facts upon which it is claimed such reduction should be made.” This section requires, as a condition precedent to the reduction of the valuation of property, that the party affected thereby, or claiming a reduction, or his agent, shall file a written application therefor with the board of equalization, verified by his oath, showing the facts upon which such reduction is claimed. Before the plaintiff could be entitled to relief in any action, his complaint should show a compliance with this essential condition precedent. In any action, before he would be entitled to relief, the plaintiff would surely be required to prove that he had made this application in writing, under oath, as required by said section of the Code. If it be essential to prove it, it must follow as a natural consequence that it is necessary for plaintiff to allege it in his complaint. There is no such allegation in the complaint, and on account of this omission the complaint is bad, and the general demurrer thereto should have been sustained.

The jurisdiction of the court is attacked by the demurrer. It is not necessary to pass upon this question. But the question arises as to whether the complaint does not-show such am illegal assessment as brings this case under exception No. 1 of section 4023, instead of giving plaintiff a right of action under sections 4024 and 4025 of the Political Code. And, if so, is the case not governed and determinable by Hopkins v. City of Butte, 16 Mont. 103, 40 Pac. 171 ?

There is a question raised as to the constitutionality of the law sought to be invoked by plaintiff in this case. If it were necessary to treat this question, we would hesitate to do so im the imperfect manner in which it is presented. The appellant discusses the question but gingerly in his brief. The respondent does not argue it at all, by brief or otherwise. We do-not feel called upon to go into the treatment of such grave and important questions, even when compelled to do so, without the aid of thorough argument by counsel.

On account of the error of the district court in overruling the demurrer to the complaint, the judgment is reversed, and the cause remanded, with instructions to sustain the demurrer.

Reversed.

Hunt and Buck, JJ., concur.